Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedChamber Summons (Reference) dated 5th January, 2022 (arising from ELRC Petition No. 3B of 2019)· [2022] KEELRC 83 (KLR)

County Assembly of Kericho & another v Bett & another (Miscellaneous Cause E001 of 2020) [2022] KEELRC 83 (KLR)

Employment and Labour Relations Court
12 May 2022
OMONESMUS N MAKAU
2,848 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court cut legal costs awarded in a petition case, ruling fees five times above the standard minimum were unjustified without proof of complexity.

What this practically means

#

Executive summary

#
This was a Chamber Summons (Reference) dated 5th January 2022, brought under Section 89 of the Civil Procedure Act and Schedule 6 of the Advocates Remuneration Order 2014 with leave granted on 16th December 2021, seeking to set aside the Deputy Registrar's decision of 7th July 2021 taxing a Party and Party Bill of Costs in ELRC Petition No. 3B of 2019 at Kshs 713,610, or alternatively remitting it for re-taxation by a different Taxing Officer. The applicants, respondents in the primary suit, argued that the instruction fees of Kshs 500,000 were five times the prescribed minimum of Kshs 100,000 under Schedule VI (j) of the ARO for prerogative order applications; that the petition involved a simple question of law with no complexity, no submissions on the merits and no voluminous documents; and that various other items exceeded the prescribed scales. The respondents defended the award as a lawful exercise of discretion, the minimum fee not being binding, and relied on comparable authorities. Justice Onesmus N Makau framed two issues: whether there were sufficient grounds to interfere with the taxing officer's ruling, and which orders were merited. Applying the settled principle that interference lies only on error of principle or manifestly excessive quantum, and noting the taxing officer's own finding that the matter was not complex, the court held the increase to five times the minimum was unjustified and an error of principle. Instruction fees were reduced to Kshs 200,000, getting up fees to Kshs 66,666.66, other items of Kshs 46,943.43 remained, giving a total award of Kshs 313,610.90, with costs of the application to the applicants. The reference was allowed in part.

Key legal issues

#
01

Whether the award of Kshs 500,000 as instruction fees was based on an error of principle

Holding

The taxing officer erred in principle by increasing instruction fees five times above the prescribed minimum of Kshs 100,000 without complexity of issues or exceptional work to justify it; fees reduced to Kshs 200,000.

Reasoning

The taxing officer himself found nothing complex in the pleadings or judgment, justifying the increase only on the multiplicity of issues. The court found the petition challenging removal from the County Assembly Service Board was a simple matter, never certified complex, with no multiplicity of issues in the strict sense and no large volume of documents. An increase five times the prescribed minimum was therefore unjustified and manifestly excessive.

02

Whether the getting up fees should be adjusted

Holding

The getting up fees falls with the reduced instruction fees, being one third thereof.

Reasoning

Since the instruction fees were reduced to Kshs 200,000, the getting up fees, calculated as one third of instruction fees, automatically reduces to Kshs 66,666.66. The respondents' argument that getting up fees became payable once the matter was confirmed for hearing was not the basis of the court's decision; the reduction flowed from the reduction in instruction fees.

p. 6
03

Whether the remaining taxed items (drawings, court attendance, registry attendance, hearing notices, copies) should be interfered with

Holding

No interference; those items were properly determined according to the applicable ARO scales.

Reasoning

The court was satisfied that the taxing officer applied the scales prescribed under Schedule 6 paragraphs 4, 5, 6 and 7 of the Advocates Remuneration Order to the remaining items, so the award of Kshs 46,943.43 stands. Interference was limited to the instruction fees and getting up fees where an error of principle had been demonstrated.

Legal principles established

#
  • A court will not interfere with a taxing officer's decision except where an error in principle is shown or the quantum is manifestly excessive or too low amounting to injustice.
  • Where the value of the subject matter is not ascertainable, the taxing officer may use his discretion to assess instruction fees, taking into account the nature and importance of the cause and other relevant circumstances.

Court orders

#
  1. 1.Instruction fees reduced from Kshs 500,000 to Kshs 200,000
  2. 2.Getting up fees fixed at one third of Kshs 200,000, equaling Kshs 66,666.66
  3. 3.Other items to remain as taxed, being Kshs 46,943.43
  4. 4.Total award of Kshs 313,610.90
  5. 5.Applicants awarded costs of the application

Authorities

#

Legislation

  • Civil Procedure ActSection 89
  • Advocates Remuneration Order 2014Schedule 6 (j) (including VI 1(j), VI (j)(ii), VI 1 (j) (iii))
  • Advocates Remuneration Order 2014Schedule VI 7(d), VI 7(b), VI 4 (a) (i), VI 4(e), Schedule 6 paragraphs 4, 5, 6 and 7
  • ELRC Procedure RulesRule 28 (3)

Cases cited (10)

  • Geoffrey Makana Asanyo v Nakuru Water and Sanitation Limited & 8 others
  • Premchand Raichand Limited v Quarry Services of East Africa Limited
    [1973] EA 162
  • Joreth Limited v Kigano & Associates
    [2002] EA 92 / [2002] eKLR
  • Kyalo Mbobu T/A Kyalo & Associates Advocates v Jacob Juma
    [2015] eKLR
  • Paul Imison & another v Jodad Investment
    [2014] eKLR
  • Opa Pharmacy Ltd v Howse & McGeorge Ltd Kampala
    [1972] EA 233
  • PZ Cussons East Africa Limited v Kenya Revenue Authority
    [2014] eKLR
  • Thomas James Artur v Nyeri Electricity Undertaking
    [1969] EA 64
  • Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board
    NRB CA Civil Appeal No. 220 of 2004 [2005] eKLR
  • First American Bank of Kenya vs Shah and Others
    [2002] 1 E.A. 64
Jurisdiction invoked
Section 89 of the Civil Procedure Act and Schedule 6 of the Advocates Remuneration Order 2014, pursuant to leave granted on 16th December 2021

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "County Assembly of Kericho & another v Bett & another (Miscellaneous Cause E001 of 2020) [2022] KEELRC 83 (KLR)", Case Analysis (2022). Chamber Summons (Reference) dated 5th January, 2022 (arising from ELRC Petition No. 3B of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/83/eng@2022-05-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.